Nurun Novi Saydur Rahman v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 02 November 2018
• Neutral Citation: [2018] SGHC 236
• Plaintiff Counsel: Anil Narain Balchandani (I.R.B Law LLP)
• Date: 02 November 2018
• Docket Number: Magistrate’s Appeal Nos 9101/2017/01 and 9101/2017/02
• Hearing Date: 20 April 2018
• Subject Matter: Workplace Safety and Health Act,Sentencing,Criminal Procedure and Sentencing,Penalties,Statutory Offences,Criminal Law
• Year: 2018
• Defendant Counsel: Ang Feng Qian, Gabriel Choong and Senthilkumaran Sabapathy (Attorney-General's Chambers),Kevin Tan Eu Shan (Rajah & Tann Singapore LLP) as Young Amicus Curiae.
• Court: High Court (Singapore)
• Citation: [2018] SGHC 236
• Published date: 06 November 2018

Chan Seng Onn J: Introduction

This is a tragic workplace accident case which involved the deaths of two construction workers, Mr Ratan Roy Abinash Roy (“Ratan”) and Mr Rajib Md Abdul Hannan (“Rajib”). The appellant, Mr Nurun Novi Saydur Rahman (“Nurun”), was alleged to have instructed Ratan, Rajib and three other workers to load an air compressor onto an uninstalled loading platform. At the material time, the loading platform was suspended at the edge of the 7th floor of a Tower under construction called “Tower A”.¹ The manner in which the air compressor was loaded onto the loading platform was in breach of a whole slew of safety regulations. One crucial breach was that the loading platform was suspended by a tower crane via four lifting chain slings, instead of being properly secured to the side of Tower A. When the air compressor was loaded onto the loading platform, the air compressor rolled away from the edge of the building. Unfortunately, Ratan and Rajib were standing on the loading platform, in the path of the air compressor. They could not move away in time and fell out of the loading platform together with the air compressor. Ratan and Rajib landed on the ground level of the construction worksite. They were pronounced dead at the scene by responding paramedics.

Nurun was charged under s 15(3A) of the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) (“WSHA”), for instructing the team of workers under his charge to load the air compressor onto the loading platform when it was unsafe to do so.

Nurun claimed trial to the charge. He was convicted and sentenced to a fine of $15,000. The grounds of decision of the district judge is reported at Public Prosecutor v Nurun Novi Saydur Rahman [2017] SGDC 263 (“the GD”). Nurun now appeals against his conviction and sentence. The Prosecution cross-appeals against the sentence.

Having considered all the available material as well as the submissions of the parties and Mr Kevin Tan (“Mr Tan”), the Young Amicus Curiae, I dismiss Nurun’s appeal against conviction and sentence and allow the Prosecution’s cross-appeal against sentence. I give my reasons below starting with a summary of the background facts.

The background facts

Nurun was an employee of GS Engineering & Construction Corp (“GSE”), a Korean construction company. At the material time he was deployed at a construction worksite at Fusionopolis Way, Ayer Rajah Avenue, where GSE had been engaged to construct two towers, Tower A and Tower B. Tower A’s structural works were subcontracted to a company identified as Zhang Hui Construction Pte Ltd (“Zhang Hui Construction”).²

On 22 January 2014, the day of the accident, Zhang Hui Construction sought the assistance of GSE to move an air compressor which was located on Level 7 of Tower A to Level 8 of Tower A via the use of a loading platform. The site supervisor for Tower A was an employee of GSE by the name of Miah Rashed (“Rashed”). On the day of the incident, Rashed instructed Nurun not to install the loading platform at Level 7.³

A loading platform is a drawer-like platform used in multi-story construction sites to move heavy loads between different multi-storey buildings or different floors on the same building.⁴ The loading platform can be transported to different floors or locations on a construction site through the use of a chain sling connected to a tower crane. Once placed on a particular floor, the proper procedure before loading heavy objects onto the loading platform would be to first install the loading platform. Installation involves resting the loading platform on the floor, fixing certain props to the ceiling of that particular floor, and removal of the chain sling from the loading platform thereafter.⁵ Only after the loading platform is properly installed should heavy loads be shifted onto the platform. When loading is done while a loading platform is suspended from a chain sling instead of being properly installed, there is a risk of the loading platform swinging or tilting during the loading process. A shift of the object to be loaded may cause the loading platform to tilt and the object to drop from height.⁶

The fatal accident occurred at about 12.30pm on the same day. At the time, a team of six GSE employees, including Nurun and the two deceased persons, were tasked with rolling the air compressor onto a loading platform at the seventh floor of Tower A. The other members of the team were: Mr Kamrul Hassan Mohammad Ali (“Kamrul”); Mr Kashem Abdul (“Kashem”); and Mr Saiful Islam Sadat Ali (“Saiful”). I shall refer to Ratan, Rajib, Kamrul, Kashem and Saiful collectively as “the five workers”.

The loading platform in question was initially located on the 10th floor of Tower B. Nurun, Ratan and Kashem first proceeded to Tower B to rig the loading platform to the tower crane, while the rest of the workers went to Tower A to remove barricades to enable the loading platform to be lifted to the 7th floor of Tower A. After the loading platform was shifted to Tower A, the three employees at Tower B joined the rest at Tower A.⁷ Unfortunately, at Tower A, the loading platform was not properly installed and was suspended by the tower crane instead. Due to the fact that it was not properly installed, the loading platform was slanted away from the tower, and the portion of the platform outside the tower was tilted lower than the portion within the tower.⁸ Just prior to the accident, the two deceased were standing on the loading platform, pulling the air compressor onto the loading platform. Meanwhile the four other employees were attempting to move the air compressor onto the loading platform from outside the loading platform.⁹ There were wheels at the bottom of the air compressor.¹⁰ When the air compressor was moved onto the platform, it rolled away from Tower A and off the platform. Ratan and Rajib, who were in the path of the air compressor, could not move away in time and fell out of the loading platform to their deaths seven floors below. All six employees of GSE were not wearing safety harnesses and were not anchored safely to prevent falls from height at the relevant time. ¹¹

The following charge under s 15(3A) of the WSHA was brought against Nurun:¹²

You … are charged that you, on 22 January 2014 at around 12 pm, being a Foreman of GS Engineering & Construction Corp … at a construction worksite located at … 03 Fusionopolis Way/Ayer Rajah Avenue Singapore, which is a workplace within the meaning of the Workplace Safety and Health Act (Chapter 354A), did in contravention of Section 15(3A) of the said Act, without reasonable cause, perform a negligent act which endangered the safety of others; to wit, you instructed the team of workers under your charge to load an air compressor onto a suspended loading platform when it was unsafe to do so, resulting in the deaths of two workers, [Ratan] and [Rajib], and you have thereby committed an offence under Section 15(3A) of the Workplace Safety and Health Act (Chapter 354A), punishable under the same section of the same Act.

GSE was also charged and convicted of an offence under s 12(1) read with s 20 of the WSHA in relation to the same accident. GSE was eventually sentenced to a fine of $250,000 (see Public Prosecutor v GS Engineering & Construction Corp [2017] 3 SLR 682 (“PP v GSE”) at [94]).

The decision below

The district judge found that there were four issues to be decided (see GD at [13]): Whether, at the material time, Nurun was acting as a foreman and in charge of the group of workers tasked with moving the air compressor at the material time; Whether Nurun was trained in the installation, dismantling and use of a loading platform, and whether he realised that a loading platform could not be used if it was not installed; Whether the fact that Nurun was following Rashed’s instruction to refrain from installing the loading platform amounted to reasonable cause for Nurun to direct the workers under his charge to move the air compressor without first installing the loading platform; and Whether there was a conspiracy by GSE to pin the blame on Nurun for the accident.

In relation to the first issue, the district judge found that Nurun held the appointment as a GSE foreman at Tower A of the worksite and he was acting in this capacity at the material time (see GD at [39] and [90]). Nurun was the one who had given the specific instructions to the workers to load the air compressor onto the suspended loading platform in an obviously unsafe manner. Kamrul, Kashem, Saiful and Ratan had all expressed concerns with the method of loading the air compressor, but Nurun insisted that the workers continue, and they complied because Nurun was their foreman (see GD at [122]).

The district judge found that the team of workers were initially unsuccessful in pushing the air compressor onto the loading platform. At that point, Nurun made a single call on his mobile phone to ask one Mr Latifur Rahman (“Latifur”), for extra manpower. However, Latifur did not provide any additional manpower. Thereafter, Nurun directed the team to continue with their attempts to move the air compressor onto the uninstalled loading platform (see GD at [182]). It was then that Ratan and Rajib went onto the loading platform and pulled the air compressor whilst the other workers pushed. The workers finally managed to get the air compressor onto the loading platform, and that was when the accident occurred (see GD at [122]). He found that Nurun’s evidence, that there were conversations over a walkie talkie during the loading process between Nurun and Rashed or between Kashem and Rashed, was a fabrication to show that either Rashed or Kashem was the directing mind when the team was moving the air compressor (see GD at [183]).

On the second issue, the district judge found that Nurun was formally trained on the installation, dismantling and proper use of a loading...